REPORT Nº 34/97*
JORGE ENRIQUE BENAVIDES
October 3, 1997
On September 24, 1996, a petition was presented to the Inter-American
Commission on Human Rights (the "Commission") against the Republic of
Colombia ("Colombia", the "State," or the "Colombian
State"). The petitioner
claimed that as a consequence of a notice for a competition conducted by the
Supreme Court and the Superior Council of the Judiciary ("Consejo Superior
de la Judicatura") to fill the position of judge on the Superior Courts,
Family Matters, of Medellin, Antioquia and Buga, which did not result in his
nomination, his human rights had been violated.
In the petition, the petitioner charges that the following rights
protected by the American Convention on Human Rights (the
"Convention") had been violated:
due process (8 and 25), right to equal protection (24), right to equal
access to public service (23.1) and judicial protection (25).
In a letter dated October 15, 1996, the Commission's Secretariat
communicated to the petitioner that it was unable to process his petition
because, as of that date, all domestic remedies had not been exhausted.
On November 24, 1996, the Secretariat of the Commission received a letter
from the petitioner providing additional information and facts regarding his
original complaint and requesting reconsideration of the decision not to take up
On July 3, 1997, the Commission received an additional letter from the
petitioner in which he indicated that all available domestic remedies had been
exhausted since the Council of State had handed down a final ruling on May 15,
1997 in his case. He attached a
copy of the decision to the letter. He
thus again sought to present his case to the Commission.
A letter was received from the petitioner on July 8, 1997, containing
On September 10, 1997, a new letter was received from the petitioner
requesting a prompt decision in connection with his petition.
A merit competition was held on January 23, 1991 in Colombia to select
magistrates for the Superior Courts, Family Matters, of Medellin, Antioquia and
The petitioner who at that time, as now, served as a judge for municipal
civil matters in Medellin, applied for those open positions.
In accordance with the laws and rules in effect on that date in Colombia
governing the aforementioned competitions, the Superior Council of the
Judiciary, the agency in charge of organizing the competitions to choose judges
and magistrates, decided in favor of other applicants who had higher competition
scores than the petitioner. It
should be noted that the petitioner came in seventh in the competition for the
Antioquia Family Court, sixth for that same court in the city of Buga, and ninth
in the competition for the Medellin Family Court.
Not satisfied with the outcome of that competition, which he considered
flawed and arbitrary, the petitioner presented an administrative complaint for
the purpose of nullifying the competition.
The Council of State, on May 15, 1997, rejected in a final ruling the
complaint submitted by the petitioner.
The petitioner also filed a suit of legal protection ("tutela")
as against the Council of State on certain limited issues resulting from the
administrative proceeding which was decided against him by an appellate court,
the Superior Court for the Judicial District of Santafe de Bogotá, on October
18, 1994. Additionally, he filed
with the Constitutional Court an action requesting that the Court declare
unconstitutional certain norms applied by the Council of State in the
The petition meets the formal requirements of admissibility set out in
Article 46 of the Convention:
The petitioner has exhausted the remedies under domestic law that are
available in accordance with Colombian law considering that the final ruling of
May 15, 1997 issued by the Council of State, docket No.8717, Request for
Nullity, submitted by the petitioner against the notice of convocation for the
magistrate competition, terminated the most appropriate and effective procedure
for resolution of the merits of the matter raised in the petition, thereby
exhausting domestic remedies.
with the suit filed for protection and the action for unconstitutionality, the
Commission is of the opinion that those remedies are extraordinary and
collateral in nature and do not go to the basic issues of the violations charged
in the petition. These two suits relate only to a fine imposed on the
petitioner and his attorney in the administrative proceedings.
The petition was presented within the term set by Article 46(b) and
article 38 of the Regulations of the Commission.
The Commission has not received any information to the effect that the
present petition is the subject of any other international proceeding.
The petition has complied with all the formal requirements of Article
46(c) of the Convention regarding name, nationality, profession, domicile and
However, according to Article 47(b) of the Convention, the Commission may
declare inadmissible any petition which does not allege facts which tend to
characterize a violation of rights guaranteed in the Convention. Accordingly, the Commission shall proceed to examine whether
the facts alleged by the petitioner constitute a violation of the human rights
protected by Articles 8.1, 23.1, 24, 25, 46.2, clause c) of the Convention, as
charged by the petitioner.
The examination of the alleged facts leads to the conclusion that they do
not constitute a violation of the rights and guarantees invoked by the
petitioner. To the contrary, an
examination of the main issue of this petition by the Commission would in fact
amount to this Commission acting as a fourth, quasi-judicial court, or as an
appeals court for domestic law since it is being requested to review a decision
reached by a body acting within its competence conferred by law and in
conformity with existing law, which decided in favor of the candidate who, in
its judgement and applying criteria relating to experience and other
qualifications, was best suited for the position. Pursuant to applicable laws, that decision was made public
and an opportunity for challenge was provided.
The procedure used in deciding the competition was then reviewed and
confirmed by the appropriate courts. The
petition thus necessarily relates to a problem of internal administration of the
The petitioner contends that flaws regarding independence and
impartiality were involved in the choice of the magistrates by inter alia
the selection of one candidate who was not a member of the judicial branch, and
accuses the Colombian state of violating the right of due process and equal
protection under the law, protected by the Convention.
The fact that the petitioner scored lower and lost a competition
conducted in conformity with prevailing rules does not constitute a violation of
the right to equal protection and due process even if the petitioner considers
that the outcome was unjust or incorrect. In
this connection and in relation to the right to equal protection, specifically,
the Inter-American Court of Human Rights has held:
[T]here would be no discrimination in differences of treatment of
individuals by a state when the classifications selected are based on
substantial factual differences and there exists a reasonable relationship of
proportionality between these differences and the aims of the legal rule under
In addition, in this case, the rules of the competition specifically
allowed for the possibility that every person who meets the requirements
established by law may participate in the competition, in compliance with the
provisions of Article 21, paragraph 2, of Decree No.0052 of 1987 which reviews,
amends and implements the Statute on Judicial Service and which states,
"every competition shall be open and any person in the judicial field or
the service and persons outside of them may participate."
In addition, the same rules seek to protect seniority and career service
by creating, in the candidate evaluation system, a special item which awards a
certain score based on experience and seniority in the judicial branch or as an
educator, as can be seen from point 3.2.2 of the notice of convocation for the
competition. In that manner, the
idea is to strike a balance between equality in access to public positions on
one hand and protection of career service on the other, thereby not establishing
a case of unjustified discrimination. The
petitioner has never alleged that the competition was not carried out in
conformity with the relevant norms in place at the time.
The petitioner nonetheless asserts that those norms were not compatible
with Colombian Constitution. Yet,
it can be concluded from the facts alleged that the petitioner had access to the
judicial remedies needed to question the legitimacy and constitutionality of the
legal regulations governing the competition in the administrative nullification
proceeding which he initiated.
With respect to the violation of the right to defense and the absence of
due process in these proceedings, the petitioner does not mention any facts that
would tend to support the allegation of such violation.
In this respect, the petitioner had access to an administrative
proceeding, a first level court, which yielded an unfavorable ruling.
The petitioner appealed to the second level court and obtained an adverse
ruling from the Council of State on May 15, 1997.
The right to a fair trial was respected, in a proceeding which lasted
only an acceptable period of time,
and the facts of the case do not support the contention that there has been a
violation of due process.
In addition, regarding the petitioner's argument regarding an alleged
lack of due process in connection with the fine levied upon him by the Council
of State, as part of the preceding that he initiated, from the facts presented
it can be concluded that while such a resolution might have been especially
strict, it was within the sphere of legal powers of the court and was applied in
conformity with the law. It is thus
not the responsibility of this Commission to review that decision.
The judicial protection that the Convention recognizes covers the right
to fair, impartial and prompt proceedings which provide the possibility, but
never the guarantee, of a favorable outcome.
In itself, a negative outcome arising from a fair ruling does not
constitute a violation of the Convention. Consequently,
the Commission does not see that the facts as charged would constitute a
violation of either Article 8 or Article 25.
Competence of the Commission: the
The Commission believes that what the petitioner requests is that the
Commission should review the competition in which the petitioner was not chosen,
and the subsequent decisions of the judicial courts that confirmed the validity
of that competition. In this
connection, the Commission restates its jurisprudence which held:
The international protection provided by the supervisory bodies of the
Convention is of a subsidiary nature. The
Preamble to the Convention is clear in this respect when it refers to the
reinforcement or complementary nature of the protection provided by the domestic
law of the American states.
That function constitutes the foundation of the so-called "fourth
instance formula." The basic
premise of this formula is that, "the Commission cannot review the
judgements issued by the domestic courts acting within their competence and with
due judicial guarantees, unless it considers that a possible violation of the
Convention is involved."
In this respect, the following is pointed out:
The Commission is competent to declare a petition admissible and rule on
its merits when it portrays a claim that a domestic legal decision constitutes a
disregard of the right to a fair trial, or if it appears to violate any other
right guaranteed by the Convention. However,
if it contains nothing but the allegation that the decision was wrong or unjust
in itself, the petition must be dismissed under this formula.
The Commission's task is to ensure the observance of the obligations
undertaken by the States parties to the Convention, but it cannot serve as an
appellate court to examine alleged errors of internal law or fact that may have
been committed by the domestic courts acting within their jurisdiction.
The Commission concludes that the petition meets the formal requirements
for admissibility under Article 46 of the Convention.
Nevertheless, from its examination of the documents presented and the
petition itself, the Commission concludes that petition does not allege facts
which tend to establish any violation of the American Convention by the
Colombian State. in particular the rights to judicial guarantees, equal
protection under the law, political rights or judicial protection as against the
Given the above considerations of fact and of law, the Commission decides
that the present petition is inadmissible in conformity with Article 47(b) of
The Commission decides that this report declaring the inadmissibility of
the petition presented be notified to the petitioner and published in its Annual
Report to the OAS General Assembly of the OAS.